Untitled Texas Attorney General Opinion ( 2006 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October l&2006
The Honorable Carole Keeton Strayhorn Opinion No. GA-0469
Comptroller of Public Accounts
Post O&e Box 13528 Re: Whether Federal Reserve notes are
Austin, Texas 78711-3528 eligible as collateral for repurchase
agreements under chapters 404 and 2256 of
the Government Cod~Clarification of
Attorney General Opinion GA-0324 (2005)
(RQ-043%GA)
Dear Comptroller Strayhorn:
In Attorney General Opinion GA-0324, we advised that chapters 404 and 2256 of the
Government Code do not authorize the Texas Treasury Safekeeping Trust Company to accept cash
as collateral for its repurchase agreements. See generally Tex. Att’y Gen. Op. No. GA-0324 (2005).
You now ask us to clarify whether Federal Reserve notes would be acceptable collateral for such
repurchase agreements.’
For background, we review Opinion GA-0324 as well as your prior request.* The Texas
Treasury Safekeeping Trust Company (“Trust Company”) manages and invests state funds and
pooled funds of local political subdivisions and entities participating in the Texas Local Government
Investment Pool (“TexPool”). See id. at I-2: The Government Code authorizes the Trust Company
to invest these funds in repurchase agreements. See id. at 2-3.“
‘See Letter from Honorable Carole K&on Strayhorn, Comptroller of Public Accounts, to Honorable Greg
Abbott, Attorney General of Texas (Jan. 27, 2006) (on tile with the Opinion Committee, also available at http://
www.oag.state.tx.us) [hereinafter Request Letter].
%e Letter from Timothy Mashbum, General Counsel, Comptroller of Public Accounts, to Honorable Greg
Abbott, Attorney General of Texas (Nov. 17, 2004) (on file with the Opinion Committee, also available at http://
www.oag.state.tx,us) [hereinat& RQ-0295-GA].
‘Se~~lsoRQ-0295-GA,supranote2, at 1-2(discussing”TexPool’?; TEX.GOV’TCODEANN. $5 791.001-,033
(Vernon2004 & Supp. 2006) (chapter791, “Interlocal CooperationAct”); 2256.001-.055 (Vernon2000 & Supp. 2006)
(chapter 2256, “Public Funds Investment Act”) (“TexPool” is organized under Government Code chapters 791 and
2256.).
‘See a/so TEX. GOV’T CODE ANN $6 404.024 (Vernon 2005) (authorizing investment of state funds in
repurchase agreements); 404.102(a) (authorizing creation of the Trust Company to enable the Comptroller to manage
(continued...)
The Honorable Carole Keeton Strayhom - Page 2 (GA-0469)
In a repurchase agreement, a party simultaneously sells securities and agrees to buy them
back at a specified time. See id. at 3.’ Although structured as a sale of securities, a repurchase
agreement is essentially a collateralized loan, with the securities that are sold and repurchased
serving as collateral and the difference between the initial sale price and the repurchase price
representing the investor’s return. See id.6 Under Texas statutes, when the state is the initial
purchaser the transaction is denominated a “direct security repurchase agreement.” TEx. GOV’T
CODE ANN. 5 404.001(3) (Vernon 2005) (definition). In a direct security repurchase agreement, the
party selling and repurchasing securities is generally referred to as the “counterparty.” See Tex. Att’y
Gen. Op. No. GA-0324 (2005) at 3; see also RQ-0295-GA, supra note 2, at 2.
In your prior request you explained that in a typical Trust Company repurchase agreement,
the securities bought and sold are kept at a custodian bank, usually a large money-center bank in
New York City. See RQ-0295-GA, supra note 2, at 2. The counter-party is generally another large
money-center bank that does business in this state or a primaty government securities dealer that
maintains billions of dollars of securities at the custodian bank to enable it to participate in
repurchase agreements with various public and private investors. See id. Typically the securities
held by the purchaser in a repurchase agreement are to be determined and allocated nightly. See id.
at 2-3. Each day, the counterparty provides the custodian with a list of repurchase agreements to be
in place at the end of the day, and the custodian allocates the counterparty’s securities to each
repurchase agreement. See id at 2. Occasionally, however, the counterparty may not have enough
securities present at the custodian bank to fully collateralize all of the counterparty’s repurchase
agreements. See id. If this deficiency is determined late in the day, there may not be enough time
for the counterparty to obtain additional securities to place with the custodian to satisfy all of the
counterparty’s repurchase agreements. See id. at 2-3. You have informed us that when such a
deficiency occurs, it is customary in the banking industry for the counterparty to provide cash to
make up the difference between the counterparty’s securities maintained at the custodian bank and
the amount necessary to satisfy the counterparty’s repurchase agreements. See id.
In your prior request you asked whether the Trust Company may invest in a direct repurchase
agreement that contemplates the possibility of cash as collateral. See id: at 34. You noted that the
relevant statutes do not expressly include cash among the securities eligible asp collateral for a
repurchase agreement. See id. at 4; see also TEx. GOV’T CODE ANN. $5 404.001(3)(A)-(C),
‘(...continued)
and invest funds, including pooled funds); 404.106(c) (the Trust Company holding funds for a particular participant has
the same investment authority as the participant with respect to those funds); 2256.003(a) (Vernon 2000) (authorizing
pooled investments); 2256.011 (authorizing investment of local funds in repurchase agreements).
‘See id. g 5 404.001(3) (Vernon 2005) (defining “direct security repurchase agreement”); 2256.0 11 (b) (Vernon
2000) (defining “repurchase agreement”); Jeanne L. Schroeder, Rep Madness: The Characterization of Repurchase
Agreementsunder the Bankruptcy Code and the U.C.C., 46 SYRACUSEL. REV. 999, 1004.05 (1996) (hereinafter
“Schroeder”).
‘See Schroeder, supra note 5, at ‘1006-10 (discussing implications of characterizing a repurchase agreement
as a true sale or a secured transaction).
The Honorable Carole Keeton Strayhorn - Page 3 (GA-0469)
.024 (Vernon 2005); 2256.009(a)(l) (vemon Supp. 2006); 2256.01 l(a)(2) (Vernon 2000). You
questioned, however, whether that omission was intended to exclude cash from serving as eligible
collateral. See RQ-0295-GA, sugra note 2, at 4. You suggested that the legislature’s general intent
was to limit the collateral eligible to secure a repurchase agreement to relatively risk-free and liquid
collateral. See id. You observed that cash would adequately serve the same purposes as the
collateral that the statutes expressly authorize. Id. Thus, you queried whether the pertinent statutes
in chapter 404 and 2256 might be construed as permitting cash to serve as collateral in repurchase
agreements. See id. at b-5.
We understood you to inquire about “cash” in its usual and ordinary sense, which may
include coins, paper money, checks, and demand deposits. See Tex. Att’y Gen. Op. No. GA-0324
(2005) at 6 (citing Stewart v. Selder, 473 S.W.2d 3, 8-9 (Tex. 1971); see also TEX. Bus. & COM.
CODE ANN. 5 9.102(a)(9) (vemon Supp. 2006) (“‘Cash proceeds’ means proceeds that are money,
checks, deposit accounts, or the like.“). We observed that while the repurchase agreement provisions
of chapters 404 and 2256 do not mention cash, other provisions of those chapters expressly authorize
using cash for other specific purposes. See Tex. Att’y Gen. Op. No. GA-0324 (2005) at 6. For
example, section 404.024 authorizes the Comptroller to lend securities under procedures requiring
the loan to be fully secured “with cash, obligations, or a combination of cash and obligations.” TEX.
GOV’T CODE ANN. 5 404.024(1) (Vernon 2005). And section 2256.0115 authorizes lending of
securities as an investment provided the loan is secured by certain pledged securities, irrevocable
letters of credit, or “cash invested in” certain securities and obligations, commercial paper, mutual
funds, and investment pools. Id. § 2256,0115@)(3)(C) (Vernon Supp. 2006). Because the
legislature expressly authorized and limited the use of cash as security in sections 404.024(1) and
2256.0115, we determined that sections 404.024 and 2256.011 could not be read to ~implicitly
authorize cash as eligible collateral in repurchase agreements. See Tex. Att’y Gen. Op. No. GA-
0324 (2005) at 7. We concluded that the Trust Company may not invest state funds or TexPool
funds “in direct security repurchase agreement contracts that contemplate the possibility of cash as
collateral.” Id. at 8.
You now ask us to confirm that chapters 404 and 2256 of the Government Code expressly
authorize Federal Reserve notes as collateral for a repurchase agreement. See Request Letter, supra
note 1, at 2. Federal Reserve notes are United States currency, legal tender for debts. See 3 1 U.S.C.
5 5103 (2000). They are our nation’s lawful money. See A&lamv. UnitedStates, 524 F.2d 629,630
(9th Cir. 1974) (Congress has delegated to the Federal Reserve the authority to “establish a national
currency”,and “to make that currency lawful money.“); Rothacker v. Rockwall County Cent.
Appraisal Dist., 703 S.W.2d 235,236-37 (Tex. App.-Dallas 1985, writ ref d n.r.e.) (noting that
.Federal Reserve notes are “legal tender;” valued in “dollars,” and issued pursuant to Congress’
authority to establish a “fiat currency”). And as money, Federal Reserve notes are one form of
“cash” as we used the term in our prior opinion. See Tex. Att’y Gen. Op. No. GA-0324 (2005) at
6; TEX. Bus. & COM. CODE ANN. 5 9.102(a)(9) (Vernon Supp. 2006) (defining “cash proceeds” to
include “money”). But as you observe, under federal law, Federal Reserve notes also constitute
obligations of the United States:
The said [Federal Reserve] notes shall be obligations of the United
States and shall be receivable by all national and member banks and
The Honorable Carole Keeton Strayhorn - Page 4 (GA-0469)
Federal reserve banks and for all taxes, customs, and other public
dues. They shall be redeemed in lawful money on demand at the
Treasury Department of the United States, in the city of Washington,
District of Columbia, or at any Federal Reserve bank.
1~2U.S.C. 5 411 (2000); see also Request Letter, sup-a note 1, at 2.
Texas Government Code chapters 404 and 2256 expressly authorize categories of acceptable
collateral in language similar to the phrase “obligations of the United States.” Section 404.001 of
the Government Code specifies the exclusives list of “securities, obligations, or participation
certificates” that may serve as collateral for a state-fund repurchase agreement:
(A) United States government securities;
(B) direct obligations of or obligations the principal and
interest of which are guaranteed by the United States; or
(C) direct obligations of or obligations guaranteed by
agencies or instrumentalities of the United States government.
TEX. GOV’T CODE ANN. 5 404,001(3)(AHC) (V emon 2005); see ako id. 5 404.024(b)(l), (c)
(authorizing the Comptroller to invest in direct security repurchase agreements). Chapter 2256
similarly provides that local funds may be invested in a repurchase agreement only if the agreement
“is secured by obligations described by [Government Code] Section 2256.009(a)(l).” Id. §
2256,011(a)(2) (Vernon 2000). The obligations that section 2256.009(a)(l) describes are
“obligations, including letters of credit, of the United States or its agencies and instrumentalities.”
Id. § 2256.009(a)(l) (Vernon Supp. 2006).
With few exceptions, unambiguous statutes are construed according to their plain language.
See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999). When
construing an unambiguous statute, we must “apply the tenet that the legislature chooses its words
carefully and means what it says.” Nuuslar v. Coors Brewing Co., 170 S.W.3d 242, 253 (Tex.
App.-Dallas 2005, no pet.). Because Federal Reserve notes are obligations of the United States,
they are eligible collateral for repurchase agreements under the plain language of sections 404.001,
404.024, 2256.009, and 2256.011 of the Government Code. See TEX. GOV’T CODE ANN. 5s
404,001(3)(B), .024(b) (Vernon 2005); 2256.009(a)(l) (V emon Supp. 2006), 2256.01 l(a)(2)
(Vernon 2000).
We reaffirm our determination in Opinion GA-0324 that, as a general proposition, sections
404.024 and 2256.011 do not authorize the Trust Company to accept cash in all its fotms as
collateral for repurchase agreements. See Tex. Att’y Gen. Op. No. GA-0324 (2005) at 8. But that
opinion was overly broad, and must be modified to account for cash that constitutes an obligation
of the United States, such as Federal Reserve notes. Attorney General Opinion GA-0324 (2005) is
modified to the extent that it provides that cash inthe fomr of a government obligation is not eligible
as collateral for repurchase agreements.
The Honorable &role Keeton Strayhom - Page 5 (GA-0469)
SUMMARY
Federal Reserve notes are eligible collateral for direct security
repurchase agreementsunder sections404.001,404.024(b),2256.009,
and 2256.011 of the Government Code. Attorney General Opinion
GA-0324 (2005) is modified to the extent that it provides that cash in
the form of a government obligation is not eligible as collateral for
direct security repurchase agreements.
Very truly YOU
KENT C. SULLIVAN
First Assistant Attorney General
ELLEN L. WITT
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
William A. Hill
Assistant Attorney General, Opinion Committee